The Higher Regional Court of Hamburg has ruled that influencers do not have to explicitly label posts with product representations and manufacturer references as advertising if it is obvious to consumers that this is influencer marketing.
In the case, a competition association had taken action against an influencer from Hamburg who earns her living with advertising contracts. On her Instagram account with around 1.7 million subscribers, she publishes images and texts on the topics of beauty, fashion, lifestyle and travel, which she only explicitly labels as advertising if she receives payment for them from companies whose products are shown. The subject of the dispute are three postings that include references to the manufacturer of the products shown or other companies without specific payment and link to their Instagram accounts. Here, too, the association demanded explicit labeling as advertising.
Contrary to what the OLG Braunschweig and the Kammergericht have ruled in similar cases, in the opinion of the Higher Regional Court the commercial purpose of such postings as advertising for consumers is so obvious that the risk of misleading or confusion with private or editorial content is excluded.
The defendant influencer operates her account as an entrepreneur and overall for commercial purposes. Irrespective of the gratuitousness of individual postings, the account as a whole serves the purpose of drawing attention to product manufacturers on the one hand and at the same time increasing the awareness of the defendant as an influencer. Postings for which the defendant does not receive any remuneration also serve to promote both third-party competition and the defendant’s own competition, at least as a (potential) advertising partner vis-à-vis companies, and are to be classified as so-called business acts. Nevertheless, the lack of labeling of the postings as advertising was not anti-competitive, because the commercial purpose of the business act was in each case directly apparent from the circumstances (Section 5a (6) UWG), because it was recognizable to a consumer at first glance.
With an Instagram account accessible to all users with around 1.7 subscribers and professionally designed posts with around 50,000 likes, every consumer was immediately aware that it was a public appearance of the defendant through which influencer marketing was disseminated. The personal and private touch that the defendant tries to give to its postings is a marketing measure that cannot be concealed from a consumer. The dressing up of advertising in ostensibly private matters, for example in the case of home stories about well-known people with corresponding product references, has been known for a long time as a means of sales promotion. A consumer is therefore aware that a private-looking presentation of personal recommendations is often nevertheless advertising. In addition, there are also personal product recommendations by individual editors in print media, without these having to be labeled as advertising if no service in return is provided for the recommendation.
Furthermore, explicit labeling or the failure to do so would not affect a consumer’s behavior under the way influencer marketing works. For the subscribers of an influencer account, it is not only obvious that advertising is presented there, but it is also decisive for them which products are advertised by the respective influencer – as long as no service in return is provided by the companies. In contrast, the reasons for which the product is presented there are secondary. Accordingly, the lack of an express marking is not within the meaning of § 5a para. 6 UWG is likely to cause a consumer to make a business decision that he or she would not have made otherwise.
Because the Hamburg Higher Regional Court’s decision deviates from the case law of other higher courts, an appeal was allowed, which would have to be decided by the Federal Court of Justice.
After the OLG Munich, the BGH could now be involved in another case with influencer jurisdiction.
